Opinion
Argued March 29, 1979
Decided May 10, 1979
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOHN A. GARBARINO, J.
Martin I. Shelton and John B. Grant, Jr., for appellants.
Julius Zizmor for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs, for the reasons stated by Mr. Justice VINCENT D. DAMIANI in his opinion at the Appellate Division insofar as it relates to the defendant Murray Marcovitz. We would note, however, that when, as here, the statute (Real Property Actions and Proceedings Law, § 1371) and the show cause order expressly provide that the defendant be served within a specified time, unsuccessful attempts to locate the defendant in order to serve him within that period cannot be said to satisfy the requirements of the statute or the court's order, even if the defendant had actual knowledge of the order or the plaintiff's alleged attempt to serve it.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER and FUCHSBERG concur.
Order affirmed, with costs, in a memorandum.